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Vaki v Eliakim [2017] PGNC 144; N6835 (8 August 2017)

N6835
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 485 OF 2014

BETWEEN
GEOFFREY VAKI, COMMISSIONER OF POLICE
First Plaintiff

AND
PETER O’NEILL, PRIME MINISTER OF PAPUA NEW GUINEA
Second Plaintiff

AND
GARI BAKI in his capacity as the Police Commissioner of PNG
Third Plaintiff

AND
NERRIE ELIAKIM, CHIEF MAGISTRATE
First Defendant

AND
THE INDEPENDENT STATEOF PAPUA NEW GUINEA
Second Defendant

Waigani: Makail, J

2017: 19^th April & 8^th August

JUDICIAL REVIEW – Review of decision by Chief Magistrate to issue a warrant of arrest – Arrest of Prime Minister – Prime Minister suspected of an offence – Official corruption – Validity of warrant – Reviewabilty of – Consideration of civil and criminal processes – Arrest Act – Section 8

Cases cited:
Geoffrey Vaki v. Mathew Damaru & Anor (2016) SC1557
Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388
Hon. Ano Pala v. Cosmos Bidar & The State (2016) SC1515
Hon. Ano Pala v. Cosmos Bidar & The State (2015) N6048
Eremas Wartoto v. The State (2015) SC1411
Grand Chief Sir Michael Somare v. Chonox Manek, John Nero, and Phoebe Sangatari as Ombudsman Commissioners and the Ombudsman Commission (2011) SC1118
Special Reference by the Attorney-General pursuant to Constitution, Section 19 (2016) SC1534
William Sent v. Cosmas Bidar & The State (2017) SC1582
Rimbink Pato v. Anthony Manjin & Ors (1999) SC622
Hon. Ano Pala v. Cosmas Bidar & The State (2015) SC1465
The State v. Kiap Bonga [1988-89] PNGLR 360
The State v. Natpalau Tulong [1995] PNGLR 330

Mika Michael Akia & Willie Simoi v. Derrick Francis & The State (2016) N6555

Counsel:

Mr. M. M. Varitimos, QC with Ms. T. Twivey, for Second Plaintiff
Mr. N. Tame, for Third Plaintiff
No appearance, for First Defendant
Mr. E. Asigau, for Second Defendant

JUDGMENT

8^th August, 2017

1. MAKAIL, J: In this case the Second Plaintiff, the Prime Minister is suspected of official corruption, an offence contrary to Section 87 of the Criminal Code. For this offence, a person shall not be arrested without a warrant of arrest.

Brief Background

2. It was for this reason that on 12^th June 2014 a warrant of arrest was issued by the First Defendant on the application of Chief Inspector Timothy Gitua of National Fraud Squad.

3. The warrant of arrest was directed to amongst others, Chief Inspector Gitua to arrest the Prime Minister “as being an (sic) holder of a Public Office, charged with the performance of his duty (sic) virtue of his office, did corruptly direct to obtain a monetary benefit for Paul Paraka Lawyers in the discharge of the duties of his office as the Prime Minister.”

4. Before the warrant of arrest was executed or served, an application was made by the First Plaintiff to have it set aside before the First Defendant. The First Plaintiff wanted to have the allegation against the Prime Minister reviewed and assessed by an independent team of detectives.

5 The Second Defendant consented to the application but pointed out that the application for warrant of arrest was not supported by an Information, a requirement which it asserted is mandatory under Section 8 of the Arrest Act.

6. On 4^th July 2014 the First Defendant dismissed the application, holding that a failure to produce an Information was not fatal to the issuance of the warrant of arrest. It was the warrant of arrest that is mandatory for the purpose of facilitating a lawful arrest of a person suspected of official corruption and which formed part of the process of police investigation.

7. Following its dismissal, on 14^th July 2014 the First Plaintiff commenced this proceeding to review the decision of the First Defendant to issue the warrant of arrest. By this proceeding, the Prime Minister was named Second Defendant. On 18^th July the Prime Minister was granted leave, and removed as Second Defendant and joined as Second Plaintiff. Further, the Prime Minister was granted leave to apply for judicial review of the subject decision.

8. The First Plaintiff was subsequently replaced by Mr. Gari Baki as Commissioner of Police. Mr. Baki was then joined as Third Plaintiff. At the date of trial, the Prime Minister and Mr. Baki were represented along with the Second Defendant while the First Plaintiff and First Defendant were not.

Parties’ Positions

9. It is common ground between the parties represented at trial that they all wanted the warrant of arrest, set aside.

Grounds for Judicial Review

10. The main ground is that the First Defendant acted without or in excess of her jurisdiction in issuing the warrant of arrest in absence of an Information contrary to Section 8 of the Arrest Act.

11. A further ground is that the First Defendant as a matter of law in issuing the warrant in circumstances in which there was no compliance with Section 8 of the Arrest Act. Amongst other things, the warrant of arrest did not disclose an offence known to law, and departs from the elements of an offence of official corruption required under Section 87 of the Criminal Code.

Requirement of an Information

12. The Plaintiffs’ submissions was based on these grounds and great emphasis was placed on the lack or absence of an Information laid before the District Court, which they submitted, is a mandatory requirement under Section 8 of the Arrest Act.

13. Failure to ensure compliance with this requirement and to issue a warrant of arrest in the absence of an Information demonstrated a case of abuse of power by the First Defendant and that she acted without or in excess of her powers under Section 8 of the Arrest Act.

14. Relevantly, Section 8 of the Arrest Act states:

“8. Issue of warrant by a court other than a Local Court.

Where an information is laid before a court, other than a Local Court, that there are reasonable grounds for believing—
(a) that a person has committed an offence within the country; and

(b) that it would not be practicable or desirable to proceed against the person by summons in that his arrest is necessary—

(i) to ensure his appearance in court to answer a charge for the offence; or

(ii) to prevent—

(A) the continuation or repetition of the offence; or

(B) the commission of a further offence; or

(iii) to preserve the safety or welfare of a member of the public or of the person,

the court may issue a warrant for the arrest of the person.”

15. The Plaintiffs emphasised that by this provision the legislature intended that there be an oversight by an independent judicial person in order to dispel any misgivings about the issue of a warrant of arrest by persons other than judicial officers. They relied on the Supreme Court decision of Geoffrey Vaki v. Mathew Damaru & Anor (2016) SC1557, per Kandakasi J for this proposition.

Reviewability of Warrant of Arrest

16. But there is a threshold issue to be determined first. It is whether the subject decision is reviewable.

17. Counsel for the Prime Minister submitted that it is. Counsel referred to the decision of a five man bench of the Supreme Court in Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388 which he submitted conclusively settled the issue of reviewability of decision of the District Court to issue a warrant of arrest.

18. He further pointed out that the Court “specifically looked at the question of whether the Commissioner of Police had standing or sufficient interest to seek leave for judicial review of the decision to use the Warrant for Arrest that is the subject of the current challenge. The Court held, in doing so, that the decision to issue a Warrant of Arrest is amendable to judicial review.”

19. Finally, he submitted that in this case, Gavara-Nanu J who heard the application for leave was obviously satisfied that the Prime Minister, who is the subject of the warrant of arrest, had a sufficient interest to challenge the warrant. Accordingly his Honour granted leave to review the decision in question.

20. And in terms of relief, it was submitted that if the judicial review application is upheld, the subject decision should be quashed. Such decision would not prevent the police from revisiting the allegation but this time must ensure that any application for a fresh warrant of arrest must be supported by a properly drafted Information.

21. I consider that the question of reviewability of a Magistrate’s decision to issue a warrant of arrest is different to the question of sufficient interest or standing of an applicant for judicial review, in this instance, the Commissioner of Police and the Prime Minister.

22. The former involves a consideration of the nature of the act complained of or exercise of power by a public official while the latter involves a consideration of the interests of the person aggrieved by the act complained of or exercise of power by the public official.

23. For that, I am not satisfied that the former question has been conclusively settled by the Supreme Court in Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (supra). In my view, that decision resolved, amongst other things, the question of sufficient interest or standing of the Commissioner of Police to challenge a decision of a Magistrate to issue a warrant of arrest. And the Supreme Court held that he does.

24. Other than this, the Supreme Court did not hold that the Prime Minister has sufficient interest or locus standi to challenge the warrant of arrest. That would be a matter for decision on a case by case basis.

25. In this case, there are two different Plaintiffs. Their interests may not necessarily be the same as can be seen from the evidence. First, one is the Commissioner of Police and the other is the Prime Minister. The former is the person whose officer, Chief Inspector Gitua has applied and obtained the warrant of arrest. The warrant of arrest is directed to his officers to arrest the Prime Minister.

26. He is now seeking to have the warrant of arrest set aside because he wants to have an independent team of detectives to review and assess the allegations against the Prime Minister. Based on the Supreme Court decision in Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (supra), he has the requisite standing to challenge the warrant of arrest but whether the subject decision is capable of being reviewed is the issue.

27. As for the Prime Minister, he is the subject of the warrant of arrest. He is a person one could be appropriately described as ‘directly affected’ by the warrant of arrest. Presumably, this was the reason why the Court was satisfied that he has standing and granted leave in this case. But again, whether the subject decision is capable of being reviewed is the issue.

28. The Prime Minister supported by Mr. Baki and the State referred to the decision of Hon. Ano Pala v. Cosmos Bidar & The State (2016) SC1515 where the Supreme Court heard an appeal from the National Court’s decision to refuse to quash the order for the issue of a warrant of arrest in Hon. Ano Pala v. Cosmos Bidar & The State (2015) N6048.

29. It was submitted that in doing so, the Supreme Court also held at [5] of its decision that the decision to issue a warrant of arrest is capable of judicial review. The Supreme Court upheld the appeal and quashed the finding of the National Court that the time to challenge a warrant of arrest in a case where the offence requires a warrant of arrest to be issued is after it is executed or served on the suspect or target.

30. The Supreme Court held that the view expressed by the National Court would deprive a person subject to an arrest warrant of his or her personal liberty as guaranteed by Section 32 of the Constitution.

31. They pointed out that the Supreme Court moved quickly to quash the warrant of arrest to prevent the State from being faced with “a legitimate claim for damages for wrongful arrest and false imprisonment.” see [35] of the Supreme Court decision.

32. It was further submitted that, in addition to the deprivation of liberty, the reputation and standing of a person arrested will be adversely affected.

33. Finally, they submitted the National Court in Hon. Ano Pala case (supra) did not appear to take issue with the ability to challenge a warrant of arrest by way of judicial review but rejected the application on the basis of the ‘timing’ of the challenge.

34. The last point of the Plaintiffs’ submissions overlooks the threshold issue of whether the Court can intervene in a criminal process and underscores the importance of the criminal law and its processes and those charged with enforcing it, in that case, when the warrant of arrest is yet to be executed. None of the parties in that case raised the question of reviewability of the District Court’s decision to issue a warrant of arrest and so the parties in this case cannot rely on it in this case.

35. And in relation to the pertinent question, the Supreme Court decision in Hon. Ano Pala (supra) appears to be in direct conflict with a five man bench decision of the Supreme Court in Eremas Wartoto v. The State (2015) SC1411 where it was held that a civil proceeding should not be used to stop a criminal proceeding from progressing because there are enough procedural safeguards that are in-built into the criminal process to give full protection to the constitutional right of an accused person including the benefit of presumption of innocence and a fair trial.

36. On a general application, this principle has been extended to administrative and leadership investigations such as an investigation and referral by the Ombudsman Commission under the Organic Law on Duties and Responsibilities of Leadership. See for instance the decision of the Supreme Court in Grand Chief Sir Michael Somare v. Chonox Manek, John Nero, and Phoebe Sangatari as Ombudsman Commissioners and the Ombudsman Commission (2011) SC1118 and recently, decision of a five member bench Supreme Court in Special Reference by the Attorney-General pursuant to Constitution, Section 19 (2016) SC1534.

37. In the most recent case of William Sent v. Cosmas Bidar & The State (2017) SC1582 the Supreme Court followed Eremas Wartoto (supra) and dismissed an appeal by the Appellant, amongst other grounds, that it was an abuse of process to seek leave to review a Committal Court’s decision to commit him to stand trial in the National Court for various fraud related charges.

38. The Supreme Court was critical of persons suspected of committing offences for using the civil Court to circumvent the criminal process. It pointed out at [27] of its decision that:

“Criminal law practice and procedure is a complete process. It commences with the decision of a police officer to arrest and ends with a finding of guilt or innocence by the National Court. A person convicted has the right of appeal or review. In all of these, there is a duty to ensure that an accused person is given a fair trial, including finality within a reasonable time and there is no miscarriage of justice.”

39. While it is acknowledged that the decision in William Sent (supra) was delivered after the trial of this matter and that the Plaintiffs have had no opportunity to make submissions on its application to the facts of this case, I am of the view that they are not adversely prejudiced by it. For it supports the traditional view that criminal processes and procedures such as a police investigation, arrest and charge of a person suspected of committing an offence should not be stopped by a civil Court: Refer to the Supreme Court decision made some 18 years ago on the original position of the law in Rimbink Pato v. Anthony Manjin & Ors (1999) SC622.

40. I prefer the view expressed by the Supreme Court in Eremas Wartoto and William Sent. These cases defined the different roles and responsibilities of the National Court when dealing with criminal cases and why the National Court’s civil jurisdiction should not be used by litigants to interfere with or stop a criminal process midstream from being completed. The criminal process is about fairness and ensuring that no miscarriage of justice has occurred to the detriment of the accused person or suspect. Within it-self are checks and balances to ensure fairness and no miscarriage of justice. Those have been succinctly identified by the Chief Justice in his judgment in the Eremas Wartoto case (supra).

41. On the other hand, the Supreme Court in Hon. Ano Pala (supra) did not consider the question of reviewability of the decision to issue a warrant of arrest and the reference to the statement at [5] of its decision that “The warrant being an order of the District Court is subject to review by the National Court” was made in passing only.

42. The further reason given by the Supreme Court that quashing the warrant of arrest at an early stage is to prevent the State from been sued for wrongful arrest and false imprisonment and furthermore, that it would prevent negative impact on the standing and reputation of the person arrested are matters that can be adequately addressed in an appropriate civil action against the Police and the State.

43. These are not considerations that the Court would consider as paramount in a criminal proceeding. Understandably, the Supreme Court did not mention them or even took them into account in Eremas Wartoto (supra) and William Sent (supra).

44. Manuhu J sitting as a single Judge of the Supreme Court in Hon. Ano Pala v. Cosmas Bidar & The State (2015) SC1465 was plain about these considerations when his Honour stated at [14] and [15] of the judgment in the context of an application for an interim order for stay that a criminal process does not recognise the status of a person in the society but considers everyone as equal. The concern about an accused person or suspect’s reputation and personal interest is secondary to interest of the people who expect a person suspected of committing a crime to be apprehended without delay. And I should add that once these considerations take the forefront of any criminal process, then we are creating two sets of laws for our people; one for the ‘small’ people and one for the ‘big’ people. This, in my view, is a dangerous precedent.

45. In this case the evidence establish that the reason for seeking to have the warrant of arrest set aside is that the Commissioner of Police wants to have the allegations against the Prime Minister reviewed and assessed by an independent team of detectives. Without descending into the merits of that reason, Mr. Vaki or his successor Mr. Baki has not explained why he wants to do that.

46. Whatever the reason (s), the lawfulness or validity of an investigation done by the officers charged with the responsibility has a bearing on the question of admissibility and weight of evidence at the trial, if the matter gets to that stage. That is where and when the Prime Minster may take up the challenge but the Commissioner must be able and must have the trust and confidence in his officers who conducted the investigation to pursue the arrest of the Prime Minister if it comes down to that.

47. As to the lack or absence of an Information, it is noted from the evidence that it was not raised by the Commissioner of Police when he applied to have the warrant set aside at the hearing before the First Defendant. It was a ground brought up and to a greater extent, relied upon by the State. It forms the main ground of this judicial review proceeding.

48. I am of the view that the challenge to the lawfulness or validity of the warrant of arrest based on this ground can be subject of scrutiny in the criminal process. This is not a peculiar or exceptional case and just because it involves the Prime Minister does not make it any difference from others in terms of how the criminal laws of this country should be applied. Accused persons or suspects in the past have been subjected to and treated no differently to the suspect in the present case.

49. For instance, in The State v. Kiap Bonga [1988-89] PNGLR 360, on a charge of official corruption for bribing a policeman with K5.00 to influence him not to lay a traffic charge, the admission of a record of interview was challenged on the ground that a warrant of arrest was not obtained. The National Court dismissed the objection holding that there was a mistake as to whether a warrant of arrest was mandatory following the repealing of the provision on warrant of arrest in the Arrest Act.

50. The bottom line is that the issue of the warrant of arrest was brought up at the trial. Here, the warrant of arrest has not even reached the trial for the Prime Minister to dispute his arrest and charge, if any. And might I add that the accused in that case was eventually found guilty and convicted of bribing the policeman with just K5.00.

51. Another case is The State v. Natpalau Tulong [1995] PNGLR 330. There the accused was charged for conspiring to defeat the course of justice under Section 128 of the Criminal Code when he was prosecuted on a charge of unlawful wounding. This is another offence which requires an arrest warrant. He was discharged after the indictment was presented because there was no warrant for his arrest.

52. Again, the bottom line is that the National Court ensured that the arrest of the accused was lawful before it proceeded to have him tried. It found it was not and discharged him. In this case, parties are not even there yet.

53. Even the National Court has discouraged accused persons or suspects from appealing decisions of District Court to commit them to stand trial in the National Court due to insufficient evidence. This is because the criminal process is yet to be completed. See Mika Michael Akia & Willie Simoi v. Derrick Francis & The State (2016) N6555.

54. Finally, while the statement by Kandakasi J in the case of Geoffrey Vaki (supra) brings to bear the importance of the role of a Magistrate in issuing warrants of arrest, the subject of the warrant of arrest is not deprived of a fair trial until the entre criminal process is completed. In making this observation, there may be cases where the accused person or suspect might not even get charged following his or her arrest and that may be the end of the matter. Either way, the criminal process once set into motion must be allowed to be completed by itself. And the option suggested by the Plaintiffs for the police to revisit the allegation and reapply for a warrant of arrest is not a viable one.

Conclusion

55. For all the forgoing reasons, it is the conclusion of this Court that the subject decision is not reviewable. The proceeding is an abuse of process and must be dismissed. Since no-one opposed the application, each party shall bear its own costs of the proceeding.
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Twivey Lawyers: Lawyers for Second Plaintiff
N. Tame Lawyers: Lawyers for Third Plaintiff
Pacific Legal Group Lawyers: Lawyers for Second Defendant